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Living Wills and Health Care Powers of Attorney in Kentucky

Posted by Chad Seiter | Mar 04, 2022 | 0 Comments

Living Wills and Health Care Powers of Attorney in Kentucky

You have probably heard about Living Wills, and Health Care Powers of Attorney as they relate to life-threatening situations and end-of-life treatment. You may even have experience dealing with these issues for a loved one who has needed one document or the other. 

It is easy to confuse the two, or lump them together as something to be figured out later. However, if you are starting to consider an estate plan for yourself or a loved one, the time to think about these two separate devices is now.

Living Will Directives in Kentucky

The Kentucky Living Will Directive Act of 1994 was passed to give citizens the right to make decisions regarding their own medical care, including the right to accept or refuse treatment. A Living Will is a document that tells your doctor or other health care providers whether or not you want “life-prolonging treatments” or procedures administered to you if you are in a “terminal condition” or in a “permanently unconscious” state. It is called a Living Will because it takes effect while you are still living. 

A terminal condition is defined as a condition caused by injury, disease, or illness which, to a reasonable degree of medical probability, as determined solely by the patient's attending physician and one other physician, is incurable and irreversible and will result in death within a relatively short time, and where the application of life-prolonging treatment would serve only to artificially prolong the dying process.

A permanently unconscious state means a condition which, to a reasonable degree of medical probability, as determined solely by the patient's attending physician and one other physician on clinical examination, is characterized by an absence of cerebral cortical functions indicative of consciousness.

A Kentucky Living Will covers almost all types of life-prolonging treatments and procedures. This is not the same as a “Do Not Resuscitate” order, which states that if you suffer cardiac arrest (your heart stops beating) or respiratory arrest (you stop breathing), your health care providers are not to try to revive you by any means.

A Living Will allows you the opportunity to designate a healthcare “surrogate” to carry out your wishes. It also clearly states in writing to health care providers and loved ones what your wishes are regarding life-prolonging treatment or procedures. Having a Living Will relieves loved ones of the burden of making such a decision.

For a Living Will to become effective in Kentucky:

  • Your medical provider must have a copy in your file;
  • You are no longer able to make your own healthcare decisions; and
  • Your doctor and one other physician have determined that you are in a terminal condition or a permanently unconscious state.

A Kentucky Living Will Directive must substantially comply with KRS 311.25, and it is usually beneficial to have the guidance of an experienced attorney when creating your Living Will. While a “do it yourself” approach is sometimes useful, documents that concern your health and life itself should be executed with a skilled advisor that can customize the directive to suit your personal wishes.

Health Care Powers of Attorney in Kentucky

A Health Care Power of Attorney can provide direction regarding medical care, but is something entirely different from a Living Will. A Health Care Power of Attorney is a legal document that allows you to appoint another person to make medical decisions for you should you become temporarily or permanently unable to make those decisions for yourself.

Compared with a Health Care Surrogate through a Living Will, a Health Care Power of Attorney has broader authority and responsibility. This is because the Health Care Surrogate's decision-making authority is limited to “end of life” situations covered under a Living Will.

A Health Care Power of Attorney can make a variety of health care decisions once an individual is temporarily or permanently unable to make his/her own health care decisions. Generally, an agent with Health Care Power of Attorney authority can make almost every treatment decision in accordance with accepted medical practice that the individual would make if they were able to do so. If the wishes are not known or cannot be determined, the agent has the duty to act in the best interest of the individual in the performance of his/her duties. These decisions can include authorizing, refusing, or withdrawing treatment – even if the individual's life is in jeopardy.

Obviously, this designation must be taken very seriously by the person creating their Health Care Power of Attorney and the person volunteering their availability for this critical role. If you are considering a Health Care Power of Attorney, you may wish to discuss your plans with your spouse, family members, close friend, physician and even your local clergy. You should also consult an attorney to make sure your advance directives are legally valid – whether you are creating a new document or revising an old one.

A variety of generic, “fill in the blanks” templates exist online to create a Health Care Power of Attorney document in Kentucky. However, given the serious nature of this instrument and the responsibilities involved, it is always advisable to prepare this document with an experienced estate planning and elder law attorney in Northern Kentucky that can tailor this to your specific situation and wishes.

Contact Darpel Elder Law for a Consultation Regarding Living Wills and Health Care Power of Attorney

When it comes down to it, if you are considering either a Living Will or a Health Care Power of Attorney, your best bet is to create both in tandem. The attorneys at Darpel Elder Law have helped many in your same situation, and stand ready to help you create a custom plan for your future health care needs. Contact Darpel Elder Law today to schedule a comprehensive consultation and discuss these options. Call our office at (859) 341-4100, or visit our website at www.darpelelderlaw.com.

About the Author

Chad Seiter

Attorney at Law

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